Greenwald and Poitras enter the US

So what is going to happen? There was a lot of anger expressed by many in the US government over their role in helping disseminate the Edward Snowden revelations and a major freak-out by those who became unhinged and have been calling for the arrest of anyone who has assisted Snowden or helped in the dissemination of the spying documents.

In January, Director of National Intelligence James Clapper suggested that journalists reporting on the NSA documents were acting as Snowden’s “accomplices.” The following month, Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, claimed that Greenwald was selling stolen goods by reporting stories on the NSA documents with news organizations around the world. Rep. Peter King (R-N.Y.) has called for Greenwald to be prosecuted.

So will they be arrested?

The problem is that by Greenwald and Poitras judiciously farming out the documents to mainstream publications around the globe and within the US, including solidly establishment papers like the Washington Post and having even the New York Times do stories, the government and the justice department will find it hard to justify the arrest of Greenwald and Poitras alone.

Of course, inconsistency and hypocrisy has not stopped the government in the past. But they may be fearful of a full media uproar if they arrest the pair when they are here to receive a journalistic award. But at the same time, if they allow them to leave again unharassed, they will be seen as paper tigers.

They won’t touch ‘em; doing so would be courting all-out cyberwar from the hacker community in the US, not to mention massive meatspace protests. They want to minimize and distract in order to quell public pressure on Congress to do something (at the extreme end, massively scale back or eliminate spying, at least domestically), and high-profile arrests would have the exact opposite effect, and also may well be violations of the free press clause.

I wonder what public pressure, or congress, can actually do at this point. I am sure government officials could get away with arresting or disappearing them, but it would make it blatantly obvious and explicit that they really can get away with breaking laws and violating the constitution. The government spying apparatus seems completely above the law now.

Important to note that they (certainly Greenwald, not sure about Poitras) have been very careful not to simply “farm out” any of the Snowden materials. Wherever any media outlet has published stories based on documents obtained from Snowden via Greenwald, he has been named as one of the journalists working on the story – i.e. he got a by-line credit.

The US government have been quite happy to go after sources using espionage laws, and even to prosecute journalists for refusing to name sources (hardly something they can nail GG for!). To do so they’ve had to argue for an extremely narrow reading of the 1st amendment, but prosecuting a journalist because of stories they’ve published would require not just a narrow reading, but actually skipping fairly significant sections entirely.

The popular understanding of what is, and is not, constitutional is elastic to a certain degree, and it can be manipulated to an extent through propaganda. But when you get to the limit of that elasticity, either you stop stretching, you lose your grip or the whole thing snaps in unpredictable ways.